Citation Nr: 0215952
Decision Date: 11/07/02 Archive Date: 11/14/02
DOCKET NO. 02-00 106A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Whether the delimiting date for receiving educational
assistance benefits under Chapter 30, Title 38, United States
Code (Chapter 30) is correct.
ATTORNEY FOR THE BOARD
J. A. Markey, Counsel
INTRODUCTION
The veteran served on active duty from August 1976 to August
7, 1981, and from February 2, 1984 to September 30, 1995.
This matter came before the Board of Veterans' Appeals
(Board) from an April 2001 determination by the Department of
Veterans Affairs (VA) Regional Office (RO) in Buffalo, New
York that the veteran's delimiting date for receiving
educational assistance benefits under Chapter 30 was April 7,
2003.
FINDINGS OF FACT
1. The veteran served on active duty from August 1976 to
August 7, 1981, and from February 2, 1984 to September 30,
1995.
2. The RO reduced the veteran's delimiting date for the
receipt of VA Chapter 30 educational benefits by the number
of days he was not on active duty between January 1, 1977,
and June 30, 1985.
3. The veteran's adjusted delimiting date is April 7, 2003.
CONCLUSION OF LAW
The veteran's delimiting date for receiving educational
assistance benefits under Chapter 34, Title 38, United States
Code, is April 7, 1993. 38 U.S.C.A. §§ 3031, 3033 (West 1991
& Supp. 2001); 38 C.F.R. §§ 21.7050, 21.7051, 21.7142 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran contends that the delimiting date for his receipt
of educational assistance benefits under Chapter 30 was
incorrectly determined by the RO to be April 7, 2003. He
contends, in essence, that the correct date is September 30,
2005, this date representing the date 10 years after his
separation from his last period of service.
Initially, the Board notes that on November 9, 2000, the
President approved the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096, which made
several amendments to the law governing certain VA claims, to
include redefining VA's duty-to-assist and notification
obligations.
However, it does not appear that these changes are applicable
to claims such as the one decided herein. Cf. Barger v.
Principi, 16 Vet. App. 132 (2002). In Barger, the Court held
that the VCAA, with its expanded duties, is not applicable to
cases involving the waiver of recovery of overpayment claims,
pointing out that the statute at issue in such cases was not
found Title 38, United States Code, Chapter 51 (i.e. the laws
changed by VCAA). As well, the statutes at issue in this
matter is not found in Chapter 51 (rather, in Chapters 30 and
34).
For background purposes, it is noted that the Chapter 34
program (Chapter 34, Title 38, United States Code) was
discontinued as of December 31, 1989. Educational assistance
benefits under Chapter 34 were available to veterans for
qualified programs for a period of ten years following
separation from service. 38 U.S.C.A. § 3452(a) (West 1991 &
Supp. 2001). A veteran who served a continuous period of not
less than 18 months of active duty after January 31, 1955 and
was released under conditions satisfying his or her active
duty obligation was entitled to full-time educational
assistance for a period of 45 months (or equivalent part-time
assistance). 38 U.S.C.A. § 3461(a) (West 1991 ). As noted
above, the veteran's first period of active service was from
August 1976 to August 1981, and as such, he was entitled to
Chapter 34 benefits.
The evidence of record also shows that the veteran had
remaining eligibility under this program as of December 31,
1989 when it expired. See 38 U.S.C.A. § 3462(e) (West 1991).
Nonetheless, under the law, an individual with remaining
Chapter 34 eligibility, like the veteran, is/was eligible for
educational benefits under the Chapter 30 program if he met
the criteria set out in 38 U.S.C.A. § 3011(a) (West 1991 &
Supp. 2001) and 38 C.F.R. § 21.7044(a) (2001). Indeed the
veteran met this criteria, as it appears that he was
involuntarily released from service for the convenience of
the government as a result of a reduction force. See
38 U.S.C.A. § 3011(a)(1)(B)(ii) (West 1991 & Supp. 2001);
38 C.F.R. § 21.7044(a)(4)(E) (2001).
In any event, in or about November 2000 the veteran applied
for and was awarded Chapter 30 benefits, and as noted above,
the RO determined that the delimiting date for his receipt of
such educational assistance was April 7, 2003. In this
regard, it is noted that the governing legal criteria provide
a ten-year period of eligibility during which an individual
may use his entitlement to Chapter 30 educational assistance
benefits; and this period begins on the date of the veteran's
last discharge from active duty. 38 U.S.C.A. § 3031(a) (West
1991 & Supp. 2001); 38 C.F.R. § 21.7050(a) (2001). In this
case, the veteran last discharge from service, as noted
above, was September 30, 1995.
However, for individuals whose eligibility is based on
38 U.S.C.A. § 3011(a)(1)(B)(i), as is the case here, the ten-
year period of eligibility is reduced by the amount of time
equal to the time that the veteran was not serving on active
duty during the period beginning January 1, 1977, and ending
June 30, 1985. 38 U.S.C.A. § 3031(e) (West 1991 & Supp.
2001); 38 C.F.R. § 21.7050(b) (2001).
Based on the evidence of record, the Board finds that the RO
properly adjusted the veteran's delimiting date for Chapter
30 educational assistance benefits. Specifically, in this
case, the veteran was not on active duty from August 8, 1981,
until February 1, 1984, which amounts to a period of two
years, five months and twenty-four days between service.
While it would initially appear that the veteran's initial
delimiting date for use of his educational assistance
benefits entitlement was on or about September 30, 2005, the
RO, as required by law, computed his reduced date and
determined that the period between the veteran's relevant
periods of active duty resulted in an adjusted delimiting
date of April 7, 2003.
The Board acknowledges the veteran's argument that his
delimiting date should be September 30, 2005, particularly in
light of the fact that he recalls that he was informed by VA
personnel (at a pre-separation seminar) that he would have 10
years of education benefits following his last period of
separation. However, the legal criteria governing the
payment of education benefits are clear and specific, and the
Board is bound by them. Notwithstanding VA's obligation to
correctly inform the veteran about basic eligibility or
ineligibility for Chapter 30 educational assistance benefits,
the remedy for breach of such obligation could not involve
payment of benefits where statutory requirements for such
benefits are not met. See Harvey v. Brown, 6 Vet. App. 416,
424 (1994). Inaccurate advice would not create any legal
right to benefits where such benefits are otherwise
precluded. See Shields v. Brown, 8 Vet. App. 346, 351
(1995); see also McTighe v. Brown, 7 Vet. App. 29, 30 (1994)
("[e]rroneous advice given by a government employee cannot be
used to estop the government from denying benefits.").
While sympathetic to the veteran's contentions, the Board
notes that it is bound by the applicable law and regulations
when determining claims for VA benefits. 38 U.S.C.A.
§ 7104(a) (West 1991 & Supp. 2001). As the disposition of
this claim is based on the law, and not on the facts of the
case, the claim must be denied based on a lack of entitlement
under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430
(1994).
ORDER
The appeal is denied.
DEBORAH W. SINGLETON
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.